ABSTRACT: India's crime rate is reaching all-time high every day. One such horrific offence is Rape. Every single day hundreds of women are being raped and killed. Even after stricter punishments, the offence of rape is extensively high. Marital rape has been evolved as an important element of rape; thousands of married women face coercive sexual relations on a daily basis but they are not being protected by the laws in place in our nation because India does not recognize marital rape. This paper examines the concept of rape and the role of consent in rape, as well as the evolution of rape laws and various amendments pertaining to rape laws. The idea behind choosing this topic is to raise awareness in the community about marital rape and how the country's rape laws are unable to protect the women and female infants. People have become so ignorant of an offense like rape that they consider it normal to rape a woman today. This study examines a variety of research questions, landmark rape cases, court opinions on these cases, and various judgments. The study concludes with a summary of the research on rape laws, highlighting the significance of marital rape and advocating for the swift passage of legislation against it.

INTRODUCTION

Rape is a non-consensual and forceful sexual intercourse of a woman. It is one of the most heinous crimes against the bodily integrity and sexual autonomy of a woman. “Rape” comes from the Latin term “Rapio” implying, “to seize.” According to the Black Law’s dictionary rape means, "the unlawful carnal knowledge of a woman by a man forcibly and against her will.”In India, the offence of rape is provided in Section 375 of the IPC and its punishment is mentioned in Section 376 of the IPC. The Supreme Court of India in the case of Bodhisattwa Gautam v. Subhra Chakraborty has correctly remarked that rape is a “deathless shame and the gravest crime against human dignity.” The term “Rape” as defined under IPC, 1860 has been subsequently evolved through various amendments and acts passed by the legislature from time to time to cater to the dynamic needs of the society. The definition of rape has been amended numerous times, although it continues to consist of certain loopholes. One such loophole is marital rape. Sexual intercourse done after the marriage even without the consent of the wife is not termed as rape in India. A married woman is not given any right under any law in force in India to file a suit against her husband for marital rape. The word “consent” is not taken care of when it comes to marital rape, the consent of the wife has no relevance according to the prevailing laws.

What is Marital Rape?

Put simply, engaging in a relationship against the wife's will is marital rape, despite the fact that it is not considered a crime. On the other hand, a United Nations report claims that India accounts for almost 75% of all yearly occurrences of married rape.

Status of Marital Rape in India

“National Family Health Survey conducted in 2015–16”, implies that married women are much more likely to experience sexual violence from their spouses, with an estimated 99.1% of sexual assault cases in India going unreported. Despite abundant evidence, marital rape is still mostly ignored. Numerous studies highlight the high frequency of sexual abuse in marriages, with shocking reports of compulsion and violence. India does not have a law against marital rape, in contrast to many other nations, however organizations like the Justice Verma Committee have called for it to be recognized. The Verma committee, which was established to reinforce sexual harassment regulations following the Nirbhaya case, noted that the presence of consent should be the primary consideration and that the victim-perpetrator relationship is not important.

In the recent judgement of Delhi High Court, Justice Shakdher gave following observations with regards to the exclusion of marital rape under Section 375; The Marital Rape Exception (MRE), which exempts a perpetrator from prosecution based only on his relationship with the victim, does not pass the nexus test. To put it another way, it only offers immunity from prosecution for an act that would otherwise be considered rape under Section 375 since it was carried out inside the context of a marriage.

The classification implies that coercive sex without marriage is "real rape" whereas within marriage is anything else than rape, which is why he believes it to be irrational and obviously arbitrary. It is not appropriate to respond in this way to a lady who has been abused by her spouse through the most heinous type of sexual assault (rape).

He observed that “In every sense, MRE, in my view, violates the equality clause contained in Article 14 of the constitution. Article 14 of the constitution not only guarantees that the state shall not deny to any person equality before the law, but also guarantees that every person within the territory of India will have equal protection of the laws. MRE, with one stroke, deprives nearly one half of the population of equal protection of the laws. The classification between married and unmarried women in the context of MRE (and what is observed hereinabove) is, without doubt, unreasonable”

Article 21

According to Justice Shakdher, the MRE violates Article 21 of the constitution because rape is an offense that causes harm regardless of the identity of the perpetrator.

Partner of the victim being the perpetrator of the rape does not lessen the harm, dehumanization, or degradation of the act. Forced sex harms the victim—a woman—emotionally, mentally, and physically regardless of who does it. Regardless of the marital status of the people, rape is an offense that should strongly be doomed by society, the speaker stated.

Article 15 & 19 (1) a

Citing Articles 15 and 19 (1) (a) of the constitution, the judge also noted that the MRE's continuation on the statute is against the former because it leads to discrimination against women on the basis of their marital status. Consequently, it diminishes and negates their sexual agency over coitus and their choice to reproduce or not procreate. More importantly, Justice Shakdher claims that women's ability to negotiate contraception, defend against STDs, and look for a safe haven free from the grip of abusers is entirely undermined.

RESEARCH OBJECTIVE

The major idea behind plumping for this subject-matter is to bring into light the importance of marital rape in India and the need for stricter laws and punishments for the protection of married women in India, also to look into the possible legal, social, and psychological effects of making marital rape a crime in India.

RESEARCH METHODOLOGY

The approach followed for research was doctrinal. Secondary sources of data, including research papers, information from pertinent government reports, and literary works, including literature by prominent authors, have been considered in order to gather information and conduct research for this research paper. In order to examine data from many sources in a flexible and open-ended way, a qualitative study of the material at hand has been done; nevertheless, a personal interpretation of the data has also been created. In order to advance a theory for the subject at hand and arrive at a sound conclusion from the pertinent information given, deductive reasoning has been taken into consideration.

LIMITATION OF THE STUDY

Only the provisions relevant to rape laws and the study of marital rape are covered in this paper because of time constraints, word limits, and adhering to a specific topic.

RESEARCH QUESTIONS

1. Incest as Rape.
2. Revision of Rape Laws and the efforts for inclusion of Marital Rape under Section 375 of IPC, 1860.
3. How Marital Rape Intersects with Gender Inequality?

FINDINGS

The term “incest” is derived from “incestum”, which is a latin word meaning “impure and unchaste.” The Merriam Webster dictionary defines the word “incest as, sexual intercourse between persons so closely related that they are forbidden by law to marry; also, the crime of engaging in such sexual intercourse.”

Incest is not mentioned in the IPC. Although Section 376(2) of the IPC and Section 5(n) of the POCSO act implies incest, it states that "being a relative, guardian or teacher of, or a person in a position of trust or authority towards a woman, commits rape on such woman." Section 5(n) of the POCSO act, 2012 provides that, “Whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child commits penetrative sexual assault on such child.” The abovementioned clauses itself is insufficient to encompass incestuous rape. The difficulty with not classifying incest as a separate a crime is that it is treated equivalent to rape, with a maximum sentence of 10 years.

However, in some case the Judiciary has awarded more stringent punishment on the accused. In “Ambaram vs State of Madhya Pradesh” , the father was accused of committing rape on his own daughters. The Court held that “The hallmark of the relationship between a father and daughter is worldwide known and it is beyond the expectation of any daughter that adultery in this sweet relation finds any place. If the protector himself becomes violator, the degree of vulnerability becomes greater and according to us, leniency in passing the sentence finds no place in such cases. Ordinarily, the adequate sentence for the offence under section 376(1), IPC is between 7 to 10 years, but looking to the act of the appellant who is the father of the prosecutrix and since in order to satisfy his lust and lascivious activity, he committed rape over his own daughter who was helpless and was residing alone with him, we are of the view that he should be sentenced to life imprisonment.”

However, it appears that stringent punishments are only imposed in exceptional circumstances. Incest should be treated separately since it is a kind of domestic sexual abuse and falls under the prohibited degree of relationship under several personal laws. Incest instances have also increased significantly; hence it should be classified as a distinct offence.

The Parliament introduced two bills to criminalise incest. “The Incest Offences Bill, 2009, The Incest and Sexual Abuse in Family (Offences) Bill, 2010 and The Incest Offences Bill, 2012”. All of these imposed severe penalties on incest offenders. The bills also provided for the members of the family who would be held guilty for the offence of incest. The most notable aspect of all of this legislation was an attempt to criminalise incestuous rape that go unreported because no law exists to prohibit them. Nonetheless, none of the aforementioned bills could be enacted by the Parliament.

Amendments in the Rape Laws:

The 1983 amendment - The definition of rape as given under Section 375 and 376 remained the same till the criminal law amendment of 1983. Since then, the strengthening of rape laws in India has been gradual, but has gained traction in response to public outrage over brutal sexual attacks against women. The criminal law was amended in 1983 due to the protests against the contentious decisions of the Supreme court in the case of “Tukaram vs State of Maharashtra” . In the case Mathura a 16-year-old girl was in a relationship with Ashok. Ashok and Mathura ran away for getting married. Mathura’s brother, Gama, filed a complaint against Ashok on the charges of kidnapping. The police took Mathura, Ashok and Gama to the local police station. While Mathura was in custody she was raped by the police officials. The Supreme Court acquitted the accused officials on the ground that “Mathura did not raise an alarm and there were no signs of injury on her body which indicates that there was no resistance on Mathura’s part.”The Supreme Court further commented that she was acclimated to sexual intercourse since she had "loose morals" and might have encouraged the police authorities to indulge in sexual intercourse. The verdict of the Supreme Court led to wide scale protests and criticism by the woman groups. The verdict led four professors Upendra Baxi, Lotika Sarkar, Raghunath Kelkar and Vasudha Dhagamwar addressing a letter to the Chief Justice of India seeking answers on the concept of “consent” in the delivered verdict.

The protests resulted in the “Criminal Law Amendment Act of 1983”. A separate category of custodial rape was added in the IPC under Sections 376-B, 376-C and 376-D. Laws were enacted to penalise abuse of authority by public officials, jail superintendents, and hospital staff/management. The amendment moved the burden of proof from the victims to the accused. Section 114A of the Indian Evidence Act states that if a female claims she did not consent to any sexual relations, the court must infer this, and the burden is on the accused. The amendment introduced Section 228A to the IPC, which forbids the revelation of the victim’s identity.

The 2013 amendment - The subsequent amendment to the IPC was brought about in the aftermath of the horrific Delhi rape case on 16th December, 2012. A 23-year-old female was returning from a movie with her friend, when she was violently raped and battered repeatedly on the moving bus by six men. The victim was repeatedly penetrated with a metal rod, which was withdrawn with such power that barely 5% of her intestines were still within her. She died in less than two weeks in a hospital in Singapore.

The horrendous incident led to Nationwide protests and consequently a committee was established under Late JS Verma, former Chief Justice of India, to amend the rape laws. The “Criminal Law Amendment Act of 2013” was enacted in response to the Delhi rape incident. Several modifications transpired. The term "Rape" as defined in Section 375 of the IPC was expanded to encompass additional sorts of penetration on a woman's body part. Prior to the amendment, penetration of a man's penis into the vagina constituted rape. The committee also suggested that the marital rape exemption be removed. The amendment also acknowledged that a lack of resistance does not constitute consent. The committee proposed abolishing the two-finger test for the victim's medical assessment. Section 376(2) was amended to include rape by personnel of the central or state armed forces. Section 376A was introduced, which stated that if rape resulted in the victim's death or persistent vegetative condition, the accused would be sentenced to rigorous life imprisonment for at least 20 years, with the possibility of imprisonment for life. A distinct section for the offence of gang rape was added. The amendment also criminalised stalking, voyeurism, acid attacks, and intentional touching. The Amendment Act made some substantial modifications, but could not criminalise marital rape.

The 2018 amendment - Notwithstanding gradual. revisions to anti-rape laws, the actual state of rape cases remained the same. Nearly six years following the Delhi rape case, the horrific Unnao and Kathua rape incidents shocked the whole country. In 2017 the Unnao rape case and in 2018 infamous Kathua rape case led to the government passing the Criminal Law Amendment Act, 2018.

Reports of Law Commission:

A In 1971, the first report addressing the matter was released. The 42nd Law Commission Recommendation said that in cases where a husband and wife were judicially separated, the S. 375 exception clause would not be applicable. This was a well-received suggestion, but the justification was not entirely obvious. According to the statement, "in such a circumstance, the marriage theoretically survives, and if the husband engages in sexual activity with her without her consent or will, he cannot be held accountable for the rape. It doesn't seem like this is correct. Because it suggests that consent cannot be implied when a husband and wife do not live together, but it is presumed in situations when they do.

One intriguing claim was made in the 172nd Law Commission Report from 2002. There were fair objections made during the consultation rounds about the exclusion clause's legitimacy in and of itself. Interestingly, "Sakshi," a women's rights organization, made the argument that since violence committed by a husband against his wife has been criminalized on multiple occasions, there is no justification for shielding marital rape from the law. This argument was rejected by the Law Commission, which also found no solid evidence to support its recommendation that "the deletion may amount to excessive interference with the marital relationship."

Marital rape is an example of gender inequality and a reflection of the uneven power relations that exist in society between men and women.

First of all, incidents of marital rape are a reflection of the power imbalances that exist between men and women in marriages. In the past, women were seen as the property of men, and marriage was seen as a transfer of ownership from a woman's father to her husband. This viewpoint gives rise to the notion that a man has the right to have sex with his wife without her consent. By endorsing the idea that men have the right to dominate women in all areas of life, including sexuality, this line of thinking helps to maintain gender inequity.

Second, when it comes to seeking legal justice after being raped in marriage, women frequently face obstacles due to gender imbalance. Owing to societal and cultural conventions, women might be reluctant to criticize their spouses. In addition, it might not be a crime in the judicial system, which makes it difficult for women to pursue justice.

Thirdly, women frequently find it difficult to leave violent relationships, particularly those that involve marital rape, due to gender disparity in terms of economic and social power. Women may frequently be financially reliant on their spouses and lack the resources to exit the marriage.

The Feministic Approach

Women should be free to control their own bodies and choose when and with whom to have sex, according to feminists. On the other hand, because marital rape is still a taboo and frequently ignored topic in India, the situation is more complicated. India's patriarchal society has long ignored the issue of sexual assault within marriage, and victims of marital rape are not legally protected. In India, there are no legal protections against marital rape, and the conduct is not recognized as a crime.

Moreover, women in India are frequently under a great deal of pressure to uphold the sanctity of marriage, even at the expense of their personal wellbeing, according to cultural and societal conventions. Speaking out against their husbands can cause social stigma and ostracism for women, making it difficult for them to pursue legal and social support.

CONCLUSION

In summary, the analysis of legal viewpoints about marital rape exposes a convoluted environment full of difficulties and inconsistencies. Although the goal of rape legislation is to protect victims and address sexual violence, it is still controversial to include marital rape. The specific criminalization of marital rape remains behind despite multiple revisions to rape legislation, which sustains a substantial legal protection vacuum for married women. Numerous law commission reports have emphasized the necessity of reform while highlighting the core ideas of equality and human rights. However, the recognition of marital rape as a criminal violation is still hampered by deeply ingrained gender inequities and societal attitudes. The analysis emphasizes how urgently this issue needs to be resolved in order to guarantee everyone's autonomy and dignity under the law, regardless of marital status.

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